Thursday, June 11, 2020

Prof. Randall Kennedy (Harvard Law) on Accurately Quoting Racial Epithets

By Eugene Volokh - June 11, 2020 at 08:02AM

Prof. Kennedy sent this letter to his Harvard colleagues and to Stanford law professors in the wake of the controversy about Stanford law professor Michael McConnell's quoting the word in a legal history class; and Prof. Kennedy graciously allowed me to post a copy here (some paragraph breaks added):

Dear Colleague:

I am writing about an issue that has arisen at a number of law schools and is latent in all of them: is it acceptable to enunciate for pedagogical purposes a racial epithet that some find to be deeply upsetting? [1] The epithet is "nigger." Contexts in which its airing has come into question include the following: a teacher enunciates the word in the course of exploring the First Amendment doctrine of "fighting words;" a teacher notes that an official court transcript produced during the era of segregation in the Deep South may well fail to reflect precisely what was said by a witness inasmuch as the transcript says "Negro" while the witness actually said "nigger;" a teacher, seeking to emphasize the depth, centrality, and influence of racism, quotes a Founding Father of the American republic referring to blacks as "niggers" during debate over the ratification of the Constitution.

Some members of our community maintain that, given the term's toxicity, any enunciation of the term "nigger" is wrongful no matter the context or the intention of the speaker. They maintain that giving voice to that epithet is so hurtful to some that no pedagogical aim is worth the pain inflicted.

This controversy seizes my attention because, for pedagogical reasons, when teaching, I sometimes give voice to the term "nigger."  I do not "use" it in the sense in which "use" of the term is rightly condemned. I do not bandy it about gratuitously, much less to taunt, threaten, demean, or insult anyone. But I do quote the term out loud in an effort to drive home to audiences the pervasiveness of anti-black prejudice and, more specifically, the way in which this troublesome word has been an integral part of the soundtrack of American racism.

Given the transmissibility of ideas, mores, and expectations in the legal academic enterprise, practices bearing on the resolution of this controversy at, say, Stanford Law School, will, before long, affect perspectives at other law schools, including my own. So partly for reasons of self-protection I want to express why, in my view, it is wrong to reprimand teachers in the circumstances outlined above.

"Nigger" is a part of the lexicon of American culture about which people, especially lawyers, need to be aware. One could omit airing "nigger." I know several distinguished, effective, thoughtful teachers who, for various reasons, never vocalize the term. One could substitute some euphemism, say, "the N-word." But I find that alternative unsatisfactory. It veils or mutes an ugliness that, for maximum educational impact, ought to be seen or heard directly.

What about the hurt inflicted by vocalizing the term? Feelings of hurt are not unchangeable givens untouched and untouchable by ways in which their expression is received. Such feelings are, at least in part, affected by the responses of observers.

The more that schools validate the idea that this hurt is justified in the circumstances outlined, the more that that feeling will be embraced, and the more that there will be calls to respect that feeling of hurt by avoiding (even perhaps by dint of threatened punishment) what is said to trigger it. I want to push in another direction, advancing the message that, in the circumstances pertinent here—circumstances in which there is no question but that instructors are airing the term for pedagogical purposes—there is no good reason to feel hurt.

Several professors caught up in the controversy I have outlined have stated that, going forward, in light of protest, they will no longer vocalize "nigger." I know some of these professors. I think here especially of Michael McConnell at Stanford Law School and Geoffrey Stone at the University of Chicago Law School. I respect them and the decision they have made.

But I disagree with it. It defers to the notion that that in the circumstances at issue, there is a sufficient basis in the protest to overcome a considered pedagogical judgment that learning would be enhanced by airing the American language's paradigmatic racial slur.

Perhaps there is something to be said as a matter of prudence for adopting this position. I note, though, that it occasionally fails to obtain the settlement that its initiators undoubtedly sought to obtain as the gesture is scorned. Instead of being seen as a sign of good will, the gesture has been seized upon as a confession of error and deployed as an additional basis for attacking reputations unjustifiably.

In my case, when this issue arises, as I suspect that it will, my position will be that conscientiously vocalizing "nigger" or any other epithet for legitimate pedagogical purposes ought not give rise to any belief or insinuation that I am displaying racism or racial insensitivity. For me, demands for silence, for avoidance, or for bowdlerization will be offered no deference.

My remarks are not the result of a transient, ethereal concern. They stem from a deep well of experience, study, and practice. I am a sixty-five year old African-American man born in South Carolina. My parents of blessed memory were refugees from Jim Crow oppression. They were branded as "niggers." And I have been called "nigger" too.

Should my race make a difference here, cloaking me with more leeway than my white colleagues? To take that position would be a profound violation of sound scholarly procedure. I abjure such a "privilege."

I am well aware that racism suffuses American life, sometimes in forms that are frighteningly lethal.  I believe that racism is a huge, destructive, looming force that we must resist.  Vigilance is essential. But so, too, is a capacity and willingness to draw crucial distinctions. There is a world of difference that separates the racist use of "nigger" from the vocalizing of "nigger" for pedagogical reasons aimed at enabling students to attain essential knowledge.

Sincerely,

Randall Kennedy

Harvard Law School

Cambridge, MA 02138

[1]  See, e.g., Nick Anderson, A Stanford law professor read a quote with the N-Word to his class, stirring outrage at the school, June 3, 2020, Washington Post; Erin Woo, Law professor criticized after reading racial slur in class, Stanford daily, May 30, 2020; Debra Cassens Weiss, Stanford law prof who used quote with racial slur in class says he won't do it again, June 2, 2020, ABA Journal; Joe Patrice, Stanford Joins List of Law Schools with White Professors Using the N-Word in Class, June 1, 2020, Above The Law; Tom Bartlett, A Professor Has long Used a Racial Slur in Class to teach Free-Speech Law. No More, He says, March 7, 2019, The Chronicle of Higher Education; Eugene Volokh, Wake Forest Dean Apologizes for Constitutional Law Professor's Quoting the Word "Nigger" from a Leading Supreme Court Case, Reason.com, March 31, 2020; Professor at Wake Forest University Apologizes for Reading the N-word in Class, April 7, 2020, The Journal of Blacks in Higher Education; Eugene Volokh, UCLA Law Dean Apologizes for My Having Accurately Quoted the Word "Nigger" in Discussing a Case. I, however do not apologize, April 14, 2020, Reason.com.


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